07-10-2012 TOA Finding of Fact and Record of Decision VAAAVON TOWN COUNCIL rf
FINDINGS OF FACT
AND RECORD OF DECISION co--Co-
° ` ° R ' ° °
CONCERNING THE PRELIMINARY PLANNED UNIT DEVELOPMENT
AMENDMENT APPLICATION FOR THE VILLAGE (AT AVON)
The following findings of fact and are made in accordance with Avon Municipal Code Section
7.16.060(e)(3), Reviewing Authority:
1. Settlement Term Sheet. The Avon Town Council approved a Settlement Term Sheet on
October 7, 2011, with Traer Creek LLC, Traer Creek Metropolitan District, BNP Paribas,
and other parties to the consolidated cases 2008 CV 385 and 2010 CV 316 pending in
Eagle County District Court. Implementation of the Settlement Term Sheet included in
part the preparation of an application to amend the Village (at Avon) Planned Unit
Development Guide and Development Plan in order to implement various terms stated in
Schedule 3 of the Settlement Term Sheet.
2. Application Submitted. A preliminary PUD Application (the "Application "), consisting
of an Amended Planned Unit Development Guide for the Village (at Avon) ( "Amended
PUD Guide "), was submitted to the Community Development Department of the Town
of Avon (the "Town ") on March 23, 2012 by Harvey Robertson of RMT Architects,
representing the owners of the Village (at Avon) property (the "Applicant ").
3. Determination of Completeness. Pursuant to Avon Municipal Code ( "AMC ")
§7.16.020(c)(1), a determination of completeness was submitted to the Applicant by letter
from Matt Pielsticker of the Community Development Department on April 3, 2012,
within ten (10) days of the application submittal. The Applicant was informed that items
remained outstanding.
4. Town Staff Initial Comments. Town staff provided the Applicant with initial
comments on April 27, 2012. A letter from Eric Heil, Town Attorney, provided initial
comments regarding title insurance exceptions. Additional comments were provided by
Matt Pielsticker of Community Development Department and Justin Hildreth of the
Engineering Department.
5. Application Complete. On May 7, 2012 the Application was determined to be
complete.
6. Referral to other Agencies. The Amended PUD Guide was referred electronically via
the Town's website, www.avon.org/referral, to other agencies for review and comment
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on May 8, 2012 pursuant to AMC §7.16.020(c)(2). The following agencies were notified
for referral: Eagle County Planning, Eagle County School District, ECO Trails, Eagle
River Water & Sanitation District, Eagle River Fire Protection District, United States
Forest Service, Department of Transportation, Eagle County Health Service District,
Department of Wildlife, Colorado State Land Board, Colorado Geological Survey,
Colorado Mountain College, Eagle -Vail Metropolitan District, Eagle County Sheriff,
ECO Transit, Eagle Valley Library District, Upper Eagle Regional Water Authority,
Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, Xcel Energy, Holy
Cross Electric, Comcast, Beaver Creek Metropolitan District, Beaver Creek Property
Owners Association, Beaver Creek Resort Company, Vail Resorts, Union Pacific
Railroad, and the Public Utilities Commission. Referral comments were due May 29,
2012, twenty (20) days after referral.
7. Staff Comment Letters to Applicant. On May 17, 2012 Matt Pielsticker of the
Community Development Department submitted revised Initial Review Comments to the
Applicant. On May 21, 2012 Town Engineer Justin Hildreth submitted his second round
of comments on behalf of the Engineering Department to the Applicant.
8. Joint Work Session with Town Council. On May 8, 2012 Planning and Zoning
Commission ( "PZC ") and the Town Council held a joint work session for an introductory
presentation of the Amended PUD Guide and the Consolidated Amended and Restated
Annexation and Development Agreement and overview of the review schedule. Version
8 of the Amended PUD Guide was submitted to both bodies at the May 8, 2012 meeting.
9. Notice of Public Hearing. On May 25, 2012, pursuant to §7.16.020(d), a notice of
public hearing was published in The Vail Daily for the June 5, 2012 Planning and Zoning
Commission meeting to review the Traer Creek LLC Village (at Avon) Preliminary
Planned Unit Development application.
10. Referral Comments Received. Two referral comments were received by the
Community Development Department on May 29, 2012, including: A comment letter by
Eagle County School District Board signed by President Jeanne McQueeny and a
comment letter by Colorado Parks and Wildlife signed by Department Area Wildlife
Manager Perry Will. Colorado Parks and Wildlife submitted comments regarding
impacts on habitat and wildlife and lack of mitigation measures to reduce the impacts.
The Eagle County School District Board submitted comments regarding amendments to
the VAA PUD to change the school site dedication requirements.
11. Staff Report to PZC. Matt Pielsticker submitted a Staff report to the PZC dated June 1,
2012. On May 31, 2012, the Applicant submitted Version 9 of the Amended PUD Guide.
Due to the receipt of the Version 9 of the Amended PUD Guide late in the day on May
31, 2012, staff was not able to review the changes in Version 9 and include such changes
in the Staff report analysis for the application. At the request of Town staff, the
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Applicant submitted a memorandum on June 1, 2012 detailing revisions to Version 8 that
are reflected in Version 9. The Amended PUD Guide Version 9 was also distributed to
Council on June 1, 2012.
12. Preliminary Public Hearing before the Planning and Zoning Commission. On June
5, 2012 the PZC held a public hearing on the Application and reviewed the Application
for approximately four (4) hours. The PZC continued the public hearing to June 11, 2012
in order to further review the Application.
13. Applicant Response to Staff Comments. On the morning of June 8, 2012,
representatives of the Applicant and Town staff participated in a four (4) hour conference
call with the Applicant for the purpose of clarifying, addressing and resolving staff
comments. On June 8, 2012 and June 9, 2012 the Applicant submitted memorandums
detailing responses to staff comments on Versions 8 and 9.
14. Notice of Public Hearing. On June 8, 2012, pursuant to §7.16.020(d), a notice of public
hearing was published in The Vail Daily for the June 19, 2012 Town Council meeting to
review the Traer Creek LLC Village (at Avon) Preliminary Planned Unit Development
application.
15. Continued Preliminary Public Hearing. On June 11, 2012 the PZC conducted the
continued public hearing and continued with further review of the Amended PUD Guide
for approximately six (6) hours. At the conclusion of the meeting, PZC noted that PZC
was not able to conduct a complete review of the Application but due to the stipulated
schedule submitted to the Eagle County District Court, took action to provide
recommendations related to Vested Property Rights, School site dedication, Planning
Area J, Design Review Board Powers, and Parkland Dedications. The PZC listed sixteen
(16) issues that were not addressed given the amount of time afforded.
16. Preliminary Public Hearing with Town Council. On June 19, 2012 the Avon Town
Council held a public hearing on the Application and reviewed the Application for
approximately five (5) hours. The Council received substantial public input from five (5)
members of the public. The Council continued the public hearing to June 26, 2012 in
order to further review the Application.
17. Version 10 of PUD Guide. On late June 21, 2012, after business hours, the Town staff
received via e -mail Version 10 of the PUD Guide which incorporated numerous revisions
as stated in Applicant's memoranda dated June 8 and June 9 and to incorporate responses
to other issues discussed at the Planning and Zoning Commission Public Hearings and
discussed at the June 19, 2012 public hearing conducted by the Avon Town Council.
Town staff was afforded minimal opportunity to review Version 10 of the PUD Guide
prior to the June 22, 2012 time for copying and delivering materials to the Avon Town
Council and prior the June 26, 2012 Avon Town Council public hearing.
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18. Continued Preliminary Public Hearing. On June 26, 2012 the Town Council
conducted the continued public hearing and continued further review of the Amended
PUD Guide.
19. Review Timeframe, Scope of Changes. The Preliminary PUD Review process and
schedule has been reduced from the minimum permitted timeframe allowed in the Avon
Municipal Code to accommodate the request of the other litigating parties in order to
implement the Settlement Term Sheet. The reduced timeframe for review and public
hearings has negatively and adversely affected the ability of the Avon Planning and
Zoning Commission, the Avon Town Council and the Avon Town staff to conduct a
complete and comprehensive review of the Preliminary Planned Unit Development
Application. At the same time, the Preliminary Planned Unit Development application
presents numerous and comprehensive changes to all aspects of the Village (at Avon)
PUD Guide which greatly exceeds the changes contemplated in the Settlement Term
Sheet.
20. Implementation of the Settlement Term Sheet. The application proposes many
revisions to the existing PUD Guide and PUD Master Plan which would implement
matters set forth in Schedule 3 of the Settlement Term Sheet and at the same time
proposes numerous changes the existing PUD Guide and PUD Master Plan which are not
directly related to implementing matters expressly identified in Schedule 3 of the
Settlement Term Sheet. The Avon Town Council finds that further consideration of
proposed revisions to the PUD Guide and PUD Master Plan which are not directly related
to implementing matters expressly identified in Schedule 3 of the Settlement Term Sheet
may be beneficial to the Avon community to the extent such revisions improve the
overall quality of the Village (at Avon) PUD and reduce the potential for future conflicts
in the interpretation and administration of the Village (at Avon) PUD.
21. Findings of Fact Related to Specific Aspects of the Application. The Town Council
has considered the Staff Report from Matt Pielsticker dated June 15, 2012, public
comments, applicant testimony, and makes the following Findings of Fact related to
specific aspects of the Preliminary PUD Application:
A. Extension to Vested Property Rights. The Planning and Zoning Commission
recommended approval of a six year extension of vested property rights along with
reasons and conditions stated in the PZC Preliminary PUD Findings and
Recommendations.
B. School Site Dedication. The Application proposes approximately 3.6 acres in
Planning Area I (now referred to as Planning Area E) and the remaining
approximately 3.7 acres will be satisfied through future conveyance in Planning Area
M (now referred to as Planning Area I). Planning Area E is encumbered by numerous
utility easements which reduce the useable acreage of the site and which bisect the
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usable acreage of the site. The Stone Creek Charter School provided correspondence
dated June 5, 2012 and June 13, 2012 which states that the utility easements and
encumbrances limit the ability of the school to fully utilize the property. The Eagle
County School District provided written comments on May 29, 2012 and oral
comments objecting to the split school site proposal. The Planning and Zoning
Commission recommended that Council not approve the school site dedications as
proposed in the application.
C. Planning Area N- South. The application proposes changing a portion of the
Community Park in existing Planning Area N (Planning Area N- South) situated
adjacent to the northwest corner of the I -70 /Post Boulevard interchange side from
park use to commercial zoning (proposed Planning Area J) to specifically allow
hotel /lodging in addition commercial uses such as gas station, convenience retail,
restaurant and similar uses. Due to the construction of the Post Boulevard
interchange and Swift Gulch road, existing Planning Area N has become bifurcated
by Swift Gulch road which negatively impacts the functionality of Planning Area N
as a cohesive regional park site. The location of existing Planning Area N -South
adjacent to the 1 -70 interchange reduces the utility and attractiveness of this area for
outdoor park uses. The application proposes to relocate the 5.8 acres park land in
proposed Planning Area I, J, and /or K to be determined at the discretion of the
developer. The Planning and Zoning Commission recommended approval of the
change of use of existing Planning Area N -South from park land to commercial in the
PZC Preliminary PUD Findings and Recommendations. Version 10 of the PUD
Guide proposes minimum standards to address the planning and siting of park lands
in proposed Planning Areas I, J, and /or K.
D. Hotel Use for Proposed Planning Area J. Existing road and utility infrastructure
exists (assuming construction of water storage tank) to support hotel use. Hotel use
adjacent to or in close proximity to the I -70 /Post Boulevard interchange is likely to be
a viable commercial use. Development of Planning Area J is likely to be very visible
from I -70, which presents both opportunities for marketability and commercial
viability as well as concerns about design and character of the Town of Avon's
primary eastern gateway.
E. Road Access to Proposed Planning Area I (current Planning Area M). Planning
Area I is currently isolated and surrounding by steep topography, the Eagle River and
the Union Pacific Rail Road line. Viable alignments for the construction of a road to
access Planning Area I are limited and are complicated by property ownership
patterns. Construction of a road across the Forest Service Village Parcel (situated
between proposed Planning Area J and proposed Planning Area 1) is likely to be
highly visible from I -70 and other locations. The amount of cut and fill required for
construction of an access road can be reduced by reducing the minimum required
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road width profile and by constructing a pedestrian/recreation path separately from
the road in a manner similar to the Swift Gulch road construction.
F. Hillside Density (Proposed Planning Areas K and RMF -1). The existing PUD
Guide allows for a maximum of 280 residential units to be served off a cul -de -sac.
G. Administrative Subdivision Approval. The PUD Guide permits "Superblocks" and
potential building massing which may impact adjoining neighborhoods. The
Administrative Subdivision approval process does not set forth a procedure or
mechanism to notify the general public or permit public hearing or comment by the
general public.
H. Maximum Commercial Density. Potential impacts of eliminating the maximum
commercial density as currently defined in the PUD Guide have not been fully
analyzed and are unknown.
I. Municipal Code Exceptions — Exhibit G. The application proposes a new Exhibit
G which itemizes specific sections of the Avon Municipal Code which do not apply
to the Village (at Avon) project. Exhibit G establishes a new regulatory format along
with changes to the Vested Property Rights language and the change to utilize the
Avon Municipal Code as exists on the "Effective Date" as defined in the CARADA.
The full extent and effect of selective exemptions from sections of the Avon
Municipal is not currently understood. The necessity of specifically exempting
specific sections of the Avon Municipal Code is also not understood. The duration of
the proposed exemptions and the applicability of amendments to the Avon Municipal
Code or regulations of general applicability to the Village (at Avon) is also not
understood.
J. Procedural Modifications and Public Review. The application proposes significant
changes to the review procedures and ability of the general public to receive notice of
various development applications and have the opportunity to comment. At the same
time, the application proposes significant greater flexibility in land uses throughout
the Project. Due process is an essential right of the residents and property owners of
Avon, including noticed hearings allowing for an informed public to provide input to
decision makers. Appropriate opportunities for public awareness and participation in
the development application review process often result in identifying potential
negative impacts of specific development proposes and potential conflicts between
land uses and promotes compatibility between land uses.
K. Buffering. Changes in the permitted uses to allow additional commercial uses and
expanded commercial uses in Planning Areas A, C, D and F may create additional
adverse impacts to adjoining neighborhoods.
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L. Water Allocation Calculation and Tracking. The water rights are described as
Single Family Equivalent, which does not conform with the description of
consumptive use credits in the Traer Creek Water Storage Tank Agreement, 1997
Water Service Agreement, and the 1999 First Amendment to Water Service and Tap
Fee Agreement. The proposed on -going control and approval of water rights
allocation by the Master Developer presents unique implications for the
administration of the build -out of the Project.
M. Wildlife Mitigation Plan. The Town received comments from Colorado Parks &
Wildlife which may not accurately assess the potential wildlife impacts of the
application. The applicant has proposed revisions in Version 10 of the PUD Guide to
further define maximum building envelopes for Planning Area K.
N. Master Developer. The definition, role and duration of the "Master Developer"
presents long term changes from the current PUD Guide, which changes are not fully
understood.
O. Subdivision. The application proposes significant changes to the applicable
subdivision review criteria and procedures.
BASED ON THE FINDINGS OF FACT STATED HEREIN AND BASED ON THE
REVIEW CRITERIA SET FORTH IN AVON MUNICIPAL CODE §7.16.060(E)(4), THE
AVON TOWN COUNCIL HEREBY APPROVES THE PRELIMINARY PLANNED
UNIT DEVELOPMENT APPLICATION WITH THE FOLLOWING CONDITIONS:
1. In accordance with AMC Section 17.16.060(e)(3) the approval of the Village (at Avon)
Preliminary Planned Unit Development application shall vest no rights to the applicant other
than the right to submit a final PUD development plan.
2. The final PUD development plan application shall be submitted in a complete form to the
Town staff at least by noon on Tuesday nine days prior to the Thursday noon deadline for
meeting packet for the Planning and Zoning Commission to allow the Town staff adequate
time to prepare a complete and comprehensive staff report.
3. The application shall be revised to eliminate any changes which reduce the public review
process for all development applications.
4. The application shall be revised to propose an appropriate opportunity for public notice and
meaningful public input for administrative subdivisions for Planning Areas A, B, C, D, E, F
and J.
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5. The application shall be revised to eliminate the administrative subdivision process for
Planning Areas K, I and RMF -1.
6. The application shall be revised to eliminate the language regarding water rights tracking and
allocation and water rights tracking and allocation shall be addressed in the CARADA.
7. The application shall be revised to conform with the terms in the CARADA where necessary
and appropriate.
8. Planning and Zoning Commission shall be afforded the entire 35 day timeframe from the
initial public hearing on Final PUD review as set forth in AMC Section 7.16.020(e) if needed
to provide a complete recommendation to the Avon Town Council.
9. The Planning and Zoning Commission shall specifically review and provide
recommendations on the following matters:
a. The effect of revisions to the Vested Property Rights language; the effect of restricting
the ability of the Town to apply future amendments of the Avon Municipal Code to the
Project; the effect, interpretation and consistency of exempting selected sections of the
Avon Municipal Code to the Project as set forth in Exhibit G; and the effect of adopting
definitions which replace or supplement definitions in the Avon Municipal Code.
b. The effect of changes to the public review process for all development applications in the
Village (at Avon).
c. The effect of any changes to the scope and authority of the Design Review Board.
d. The effect of general changes to the description of use categories for all Planning Areas.
e. The specific effect of adding new uses to Planning Areas.
L The impact of proposed revisions on existing neighborhoods adjacent to the Project and
the effectiveness of any proposed development standards or other methods to mitigate
potential negative effects with particular regard to establishing or maintain effective
buffers between incompatible uses.
g. Planning considerations related to eliminating the residential density for proposed
Planning Area I.
h. Planning considerations related to the access road to proposed Planning Area I including
minimum road development and design standards.
L Planning considerations related to changes the minimum and maximum required
percentage mix of residential and commercial uses within Planning Areas A, C, D and F.
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j. The effectiveness of existing and proposed procedures and development standards to
address potential conflicts and impacts of various land uses internally within the Project
which may arise from proposed revisions to uses.
k. The size, shape, location, access and other site characteristics of Planning Area B as
relates to its intended use, including the size and use of water features and /or
impoundment areas.
1. The effect of proposed revisions and clarifications to address wildlife impacts. Proposed
revisions and clarifications shall be forwarded to the Colorado Department of Wildlife for
additional comment and review provided that such referral shall not extend or delay the
time frame for review by the Planning and Zoning Commission.
m. The current and projected capacity of the Eagle County School District and the projected
student generation from the Project shall be further analyzed and considered.
n. The impact of utility easements and other encumbrances on the usability of Planning
Area E and any potential safety issues which arise from the presence of gas utilities.
o. The effect of the definition and authority of the Master Developer.
p. The effect of water rights allocation and method of tracking and accounting.
q. The effect of proposed changes to the definition of residential unit and resident uses for
proposed Planning Area K as relates to the total potential traffic impact and emergency
vehicle access for development served by a cul -de -sac.
r. Planning considerations related to dedication of Open Space Tracts OS -9 and OS -10.
s. Planning considerations related to the proposed hotel building height of 135' for Planning
Area A and Planning Area I.
t. Planning considerations related to the reduced minimum width of current East Beaver
Creek Boulevard (proposed "Main Street ").
u. Planning considerations related to monument signage.
v. Planning considerations related to the impact of Interim Uses and Temporary Uses.
w. Planning considerations related to telecommunication uses and definitions.
x. Planning considerations related to changes in sign permits.
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y. Planning considerations related to minimum design standards on Planning Area J
regarding hotel use.
Z. Planning considerations related to the impact of easements on Planning Area E and how
such easements affect the intended use of Planning Area E.
10. The Planning and Zoning Commission shall review and provide recommendations on such
other matters as deemed appropriate during Final PUD Review pursuant to the role, duties
and review criteria established in the Avon Municipal Code.
11. The Avon Town Council expressly reserves the right to review any and all aspects of the
application for compliance with the applicable review criteria for Final PUD review and
approval of the Preliminary PUD shall not be deemed to be a final approval of any aspect of
the PUD amendment application.
APPROVED BY THE AVON TOWN COUNCIL BY A VOTE OF SEVEN (7) IN FAVOR
AND ZERO (0) OPPOSED on July 10, 2012.
By: Attest:', °}
Rich Carroll, Mayor Catherine Mythen, Deputy Town Clerk
TRAER CREEK LLC VAA PRELIMINARY PLANNED UNIT DEVELOPMENT AMENDMENT
FINAL FINDINGS OF FACT AND RECORD OF DECISION ADOPTED JULY 10, 2012 BY THE
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